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Co-Reg
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I have internal traffic, and run my own media buys [Internal]
I run a network, that allows 3rd party traffic and other network traffic [network]
I manage exclusive partners, and book media buys on their behalf. [managed partners]
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Axad Capital Terms *
MASTER SERVICES AGREEMENT
This MASTER SERVICES AGREEMENT (this “Agreement”) is dated for reference purposes as of {Everflow Sign Up Date}, and is entered into by and between Raksha Marketing, LLC d/b/a Axad Capital, a Delaware limited liability company with its principal place of business located at 375 5th Ave, 4th Floor, New York, NY 10016 (“Company”), and Vendor, a LLC/Proprietorship/Incorporation company with its principal place of business located at AddressInEverflow (“Vendor”). Company and Vendor are each also referred to herein individually as a “Party” and collectively as the “Parties.” This Agreement shall become fully effective and enforceable on the last date that this Agreement is signed by any of the Parties (the “Effective Date”).
WHEREAS, Company is in the business of acquiring, selling, and otherwise facilitating information about consumers interested in obtaining insurance and/or financial quotes or related products, as well as engaging in efforts to assist consumers with obtaining such products or related services; and
WHEREAS, the Parties desire to enter into Insertion Orders from time to time pursuant to the terms and conditions of this Agreement whereby Company may obtain various lead products, consumer traffic, and/or other related services from Vendor, or whereby Company may facilitate the placement of online advertisements on Vendor’s websites.
NOW THEREFORE, in consideration of these recitals, and other good and valuable consideration and the mutual promises and covenants contained herein, the sufficiency of which the Parties acknowledge, the Parties do hereby agree as follows under this Agreement:
1. Definitions
In addition to any other terms defined elsewhere in this Agreement, the following terms shall have the following meanings for purposes of this Agreement:
a. “Affiliate” means, with respect to either Party, any company, corporation, partnership, or other entity, directly or indirectly, controlling, controlled by, or under common control with, such Party, where “control” is defined as having rights to more than 50% of the equity, ownership, or voting rights for such entity.
b. “Applicable Laws” means all applicable federal, state, and local laws, rules, regulations, orders, judgments, and other legal requirements of any jurisdiction.
c. “Call” means a live telephone call with a Consumer that is successfully connected and/or transferred to Company in accordance with the terms of the applicable IO.
d. “Click” means a click or similar action taken by a Consumer on an online advertisement whereby the Consumer is transferred to a website designated by Company or a third-party advertiser in accordance with the terms of the applicable IO.
e. “Vendor Services” means the activities, services, and/or products to be performed or offered by Vendor under this Agreement to the extent described in one or more IOs.
f. “Consumer” means an individual person.
g. “Data Lead” means Lead Data and/or other information provided by a Consumer that is purchased by Company from Vendor in accordance with the terms of the applicable IO. Data Leads are separate and distinct from Calls, which is a different type of Lead Product.
h. “Inbound Call” means a Call initiated by a Consumer to a specified telephone number.
i. “Intellectual Property Rights” means any patent, copyright, trade secret, trademark, or other proprietary right.
j. “IO” or “Insertion Order” means a written order signed by both Parties for the performance of Services and/or delivery of Lead Products under this Agreement, whether made by a signed insertion order, statement of work, or similar agreement.
k. “Lead Data” means Personal Information or other information provided by a Consumer on a voluntary basis via a lead form, quotation request form, or similar method, or via telephone call. For the avoidance of doubt, Lead Data does not include information provided by a Consumer to Company after the Lead Data is transferred to Company.
l. “Lead Products” means and includes Data Leads, Calls, Clicks, or any other goods or services to be provided by Vendor under this Agreement and as set forth in an applicable IO.
m. “Network Partners” means and includes Affiliates, media partners, suppliers, lead sellers, publishers, or other third parties used by Vendor to generate, source, or obtain Lead Products and/or drive consumer traffic to websites owned and operated by Vendor.
n. “Outbound Call” means a Call pursuant to which Vendor or its Network Partners dial the telephone number of a Consumer who has consented to receive such telephone call in accordance with Applicable Laws.
o. “Personal Information” or “PII” means data or information that identifies or could reasonably be used to identify a Consumer, or is about a Consumer, including but not limited to personally-identifiable information (such as name, address, telephone number, email address, or IP address), financial information, or health or medical information.
p. “Company Services” means the activities, services, and/or products to be performed or offered by Company under this Agreement to the extent described in one or more IOs.
q. “Services” means the Vendor Services and/or Company Services.
r. “Traffic” refers to Consumers visiting a Party’s online website(s).
2. Services; Insertion Orders
a. Vendor shall provide the Lead Products and/or other Vendor Services, and Company may perform Company Services, to the extent mutually agreed upon and set forth in one or more IOs. No IO will become effective until it has been executed by an authorized representative of each of the Parties. The IOs are hereby incorporated in full into this Agreement and shall be a part of this Agreement upon their execution by the Parties.
b. Any rights and obligations of the Parties as set out in this Agreement shall apply to each IO and the Services provided thereunder, except as expressly stated therein. In the event of a conflict between this Agreement and an IO, the provisions of the applicable IO shall prevail (but solely with respect to the conflict and only for purposes of that IO).
3. Billing; Payments
a. Vendor will issue monthly invoices to Company detailing the amounts payable by Company to Vendor under this Agreement and the applicable IO (“Fees”). Unless otherwise expressly provided in the IO, payment shall be made by Company to Vendor for all amounts due within thirty (30) calendar days from Company’s receipt of the invoice. All payments shall be made in U.S. dollars. Vendor shall submit a valid Form W-9 to Company prior to the initial payment (or valid Form W-8 if applicable). Invoices must be submitted electronically to [Insert Payment Email Address]. Submission of invoices in any other manner will result in payment delays, and it is agreed and acknowledged that no interest shall be due on amounts so delayed, nor shall any other penalties be imposed, as a result of such delays.
b. Notwithstanding the foregoing, Company shall not be required to pay any amount reasonably in dispute, provided that Company promptly notifies Vendor in writing (email acceptable) of the amount in dispute and the reasonable basis therefore. The Parties shall investigate and resolve any such disputes in a timely and reasonable manner.
c. Vendor’s failure to invoice Company for Fees within ninety (90) calendar days after the end of the calendar month in which the Fees were incurred will constitute a waiver of any Company obligation to make payment for any such Fees.
4. Term and Termination
a. Term of this Agreement. The term of this Agreement (the “Term”) will begin as of the Effective Date and will continue until terminated as permitted pursuant to this Agreement.
b. Term of IOs. The term of each IO shall be as explicitly specified within the IO itself, if any, or such term as the Parties may agree in writing. All IOs will terminate immediately upon termination of this Agreement. If no term is identified within the IO, then the term of the IO shall commence once the IO is fully executed by both Parties and shall terminate as permitted pursuant to this Agreement or as expressly set forth in the IO.
c. Termination for Convenience. Either Party shall have the right to terminate this Agreement, for any or no reason, upon at least fifteen (15) days’ prior written notice to the other Party.
d. Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party breaches any material term of this Agreement and fails to cure such breach within five (5) business days after written demand from the non-breaching party to do so.
e. Effect of Termination. Termination of this Agreement shall not relieve Company of its obligation to pay all Fees that accrued prior to such termination. At the end of the Term: (i) each Party will immediately cease using any Confidential Information provided by the other Party; and (ii) any Confidential Information in the Parties’ possession shall be returned to the other Party or otherwise deposited or disposed of per the other Party’s written direction, unless required to be retained by Applicable Laws. Upon termination, any obligations which expressly or by their nature are to continue after termination or expiration of this Agreement shall survive and remain in full force and effect, including but not limited to Sections 9, 12, 13, and 15 through 18.
5. Representations and Warranties: All Parties
a. Authority. Each Party represents and warrants to the other Party that it: (i) is organized and validly existing under the laws of the jurisdiction of its organization; (ii) has full corporate power and authority to transact any and all business contemplated by this Agreement and possesses all requisite authority, power, and licenses, permits, and franchises to conduct business wherever it conducts business and to execute, deliver, and comply with its obligations under the terms of this Agreement; and (iii) has taken all necessary action to authorize its execution, delivery, and performance of this Agreement. Each Party further represents that, by entering into this Agreement, it is not violating the terms of any other agreements with any third parties.
b. Websites. Company and Vendor each represent and warrant that their respective websites shall not: (i) contain or promote sexually explicit materials; promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials reasonably deemed unsuitable or harmful to the reputation of the other Party; (ii) promote illegal activities or violations of the Intellectual Property Rights of others; or (iii) advertise or promote through the use of unsolicited bulk email.
c. Compliance with Laws. Company and Vendor each represent and warrant that it will comply with all Applicable Laws pertaining to its business and the subject matter of this Agreement, including, but not limited to, to the extent applicable, the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.), the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.), the Telephone Consumer Protection Act (47 U.S.C. § 227) and its implementing regulations adopted by the Federal Communications Commission (47 C.F.R. § 64.1200 et seq.) (collectively, the “TCPA”), the Telemarketing Sales Rule, 16 C.F.R § 310 et seq., the Do Not Call Implementation Act (P.L.108-10, 117 Stat. 557), the Controlling the Assault of Non-Solicited Pornography and Marketing Act (15 U.S.C. §7701 et seq.) (the “CAN-SPAM Act”), the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.) and its implementing regulations (12 C.F.R. § 1016.1 et seq.) (collectively, the “GLBA”), the California Consumer Privacy Act, including as amended by the California Privacy Rights Act (collectively, the “CCPA”), and any applicable state consumer protection, consumer or data privacy, or telemarketing or telephone solicitation laws and regulations. Further, each Party shall also comply with and perform its obligations in a manner that accords with all Applicable Laws regarding privacy, security, confidentiality, and disclosure of medical records or other health and enrolment information, including but not limited to, to the extent applicable, the HIPAA Standards for Electronic Transactions (45 C.F.R., Parts 160 and 162), Medicare laws and regulations (42 C.F.R. §§ 422.504, 423.505), CMS Medicare Communications and Marketing Guidelines (“MCMG”), and all applicable state and federal privacy laws and regulations. Each Party further represents and warrants that (i) it will not engage in any unfair, deceptive, or abusive acts or practices, and (ii) it will reasonably cooperate with the other Party in connection with any claims or requests from third parties related to performance of this Agreement, including, without limitation, claims or requests from any governmental entity or regulatory body.
6. Additional Responsibilities, Representations, and Warranties: Vendor
Vendor agrees to, represents, and warrants the following:
a. Subject to the execution of an IO for such services and the terms and conditions of this Agreement, Vendor will use commercially reasonable efforts to transmit Lead Products to Company as set forth in such IO during the term thereof.
b. The Vendor Services and Lead Products do not infringe, violate, or misappropriate any Intellectual Property Right or privacy right of any third party.
c. Unless stated otherwise in any IO, Vendor may use Network Partners to generate, source, or obtain Lead Products and/or drive Traffic to websites owned and operated by Vendor. The obligations imposed on Vendor under this Agreement shall also apply to its Network Partners. If Vendor uses any Network Partners with respect to any Lead Products, Vendor shall at all times be responsible for any acts, practices, or omissions of all such Network Partners that result in a breach of any of Vendor’s obligations under this Agreement or a violation of Applicable Laws.
d. Neither Vendor nor its Network Partners will engage in any fraudulent or otherwise unfair, deceptive, or abusive acts or practices with respect to the distribution or generation of Lead Products.
e. Vendor shall ensure that its communications with Consumers comply with Applicable Laws.
f. If Vendor uses any Network Partners with respect to any Lead Products, Vendor shall at all times be responsible for any acts, practices, or omissions of all such Network Partners that result in a breach of any of Vendor’s obligations under this Agreement or a violation of Applicable Laws.
g. Vendor and its Network Partners will not offer any payment, rebate, or other monetary incentive to complete a lead form, induce Consumers to initiate a Call, or click on a link, or otherwise attempt to artificially increase Fees.
h. Vendor and its Network Partners shall treat any Personal Information in a manner which is at least as rigorous as required by Applicable Laws, but in no event less than a reasonable standard of care. Vendor and its Network Partners shall ensure that all Personal Information is maintained in a secure environment and shall treat all Personal Information in accordance with its own privacy policies. Absent the prior written consent of Company, Vendor shall not conduct any Services outside of the United States nor shall Vendor provide to Company any Lead Products that were generated, facilitated, processed, serviced, or obtained outside of the United States by Vendor or its Network Partners. Vendor may not utilize any Network Partner or any call center located outside of the United States without Company’s prior written approval. Vendor and its Network Partner shall store all Personal Information exclusively on servers and systems physically located within the United States except as otherwise expressly agreed upon by Company in writing.
i. All Lead Products provided by Vendor via a ping-post method shall be submitted or otherwise delivered by Vendor to Company in a manner that accords with Company’s integration procedures and/or API specifications, to the extent applicable, as may be provided by Company from time to time.
7. Additional Provisions for Data Lead Products
To the extent that Company obtains Data Leads from Vendor under an IO, the following shall apply:
a. Type of Data Leads. Vendor will offer, and Company shall pay for, either: (a) an “Exclusive Lead,” meaning the Lead Data has not been sold or otherwise provided by Vendor to any other entities not a party to this Agreement; or (b) a “Shared Lead,” meaning the Lead Data has been sold or may be sold by Vendor to at least one other entity not a party to this Agreement.
b. Exclusive Leads. Vendor may not sell, transfer, or otherwise provide Exclusive Leads to any third party or anyone other than Company; Company will have exclusive rights on all Exclusive Leads and may sell or distribute Exclusive Leads per Company’s sole discretion. Vendor is also not permitted to engage in any remarketing activities within the same vertical that are specific to that Consumer for a period of forty-five (45) calendar days after providing the applicable Exclusive Lead to Company, except that it may promptly deliver industry-standard follow-up emails including, but not limited to, thank you emails and customer satisfaction emails to the extent permitted by Applicable Laws.
c. Shared Leads. For each Shared Lead, Vendor shall provide intended distribution directives prior to purchase which identify the carrier’s name or agency license number (in case of an independent agency) (each, a “Leg”) for whom the Shared Lead is being purchased. If the Shared Lead is purchased by Company, then: (i) Company is permitted to only sell, transfer, or otherwise disclose the Lead to the specific Leg identified in the distribution directive; (ii) Vendor shall not sell or otherwise provide the specified Leg to any third party; and (iii) a Shared Lead may not be sold by the Parties more than a combined five (5) times (e.g., if Company purchases a single Leg of the Lead, then Vendor and its Network Partners may not sell, transfer, or otherwise disclose the Lead more than four other times). The Parties are responsible for ensuring that all such distribution directives and lead restrictions are followed by any third-party to whom it sells, transfers, or otherwise discloses the Lead.
8. Additional Provisions for Calls
To the extent that Company obtains Calls from Vendor under an IO, the following shall apply:
a. Company may resell or transfer Calls to a third party, at its discretion, except as otherwise set forth in this Agreement or in the applicable IO.
b. To the extent a Call transferred to Company by Vendor originates as an Inbound Call, Vendor shall identify it as such.
c. Vendor agrees that neither it nor any Network Partner will record any Calls following transfer to Company, absent express written authorization by Company or except as required by Applicable Laws.
d. With respect to Outbound Calls provided to Company under this Agreement, Vendor represents and warrants that it and its Network Partners shall not initiate Calls or otherwise place any Calls to a Consumer via robocalls, prerecorded messaging, artificial intelligence, and/or any other type of artificial or pre-recorded voice calls (including use of ringless/direct-to-voicemail technology) without the written approval of Company. Prerecorded messages are not permitted to be placed, at any time, without the written approval of Company. All such activities are otherwise prohibited irrespective of whether Vendor has received prior consent from the Consumer to utilize such activities and related technologies.
9. Consent from Consumer; TCPA Compliance
To the extent that Vendor provides Data Leads or Outbound Calls under this Agreement, Vendor agrees to the following terms:
a. Vendor represents and warrants that all such Data Leads and Outbound Calls, and accompanying Lead Data provided by Vendor to Company under this Agreement, if any, will be from Consumers who have provided prior express written consent, in compliance with the TCPA, to being contacted by Company and Company’s partners, clients, and lead buyers (collectively, the “Company Buyers”), and that such Consumer did so with a valid signed prior express written consent (or via e-signature valid under Applicable Laws), acknowledging that he or she: (i) agreed unambiguously to receive marketing messages and offers for the applicable products or services that could include calls or text messages from an automated telephone dialing system and/or an artificial or prerecorded voice at a telephone number designated by the Consumer; and (ii) was not required, directly or indirectly, to provide his or her phone number or consent as a condition of purchasing any good or service. A list of the Company Buyers is set forth at [Insert Link], as Company may freely amend from time to time.
b. For all Outbound Calls transferred or otherwise provided to Company under this Agreement, Vendor further represents and warrants that it and/or its Network Partners (as applicable) called, texted, or otherwise contacted the Consumer in compliance with Applicable Laws, including but not limited to the TCPA.
c. Vendor shall maintain records of any prior express written consent (or e-signature) obtained from the Consumer (the “Consent Records”) for a minimum of eight (8) years following creation of same, and shall provide such Consent Records to Company within two (2) business days of request at any time. In the event Vendor uses a Network Partner to generate or deliver Lead Products, and a Network Partner collects or maintains any Consent Records, Vendor shall ensure Company has access to such Consent Records in the Network Partner’s possession and shall provide such Consent Records to Company within three (3) business days of request at any time. The Consent Records shall include, at a minimum, any consent language appearing on online media from which Lead Data was collected, the IP address of the source of the applicable Data Lead and/or Outbound Call, and screenshots of any applicable notification or consent language as seen by the Consumer (with time and date stamp indicating when the Lead Data was collected).
10. Requirements for Sourcing and Obtaining Lead Products
As it relates to all Lead Products provided under this Agreement, Vendor represents and warrants that it shall follow and adhere to the following requirements in connection with advertising, generating or obtaining Traffic and/or otherwise sourcing and developing Lead Products provided to Company:
a. Incentives. Traffic or Lead Products may not originate through incentivized websites, portals, web applications, or similar programs, which are not permitted. Vendor will not offer any payment, rebate, discount, or other monetary incentive to drive Traffic or complete a lead form.
b. Paid Search Advertising. With respect to keyword bidding on Google Ads, Bing Ads, or other advertising auction marketplaces or search engine marketing, Vendor and its Network Partners may not bid on any of Company’s brand names or trademarks, nor the brand names or trademarks of the Company Buyers, nor any misspellings thereof. Further, upon explicit request from Company (email being sufficient), Vendor and its Network Partners shall add a negative match to those keywords and phrase types prohibited, as applicable, by certain Company Buyers.
c. Prohibited Sites. Traffic originating from advertising creative or landing page link(s) from the following type of sites, or adjacent to the following content, are prohibited: pornographic sites, prurient content sites, or sites or content that promote sexually explicit or obscene materials; sites or content that promote violence, hate or discrimination of any type based on race, sex, religion, nationality, disability, sexual orientation, or age, or constitute or promote illegal activities; or sites or content that are reasonably deemed to be offensive in nature, degrading, libelous, or profane.
d. Mobile Distribution. Traffic or Data Leads may not originate through advertisements, messages, or materials of any kind distributed via mobile distribution, including without limitation, SMS or text messages or outbound calls (collectively, “Mobile Distribution’). Mobile Distribution does not include emails opened on a mobile device, nor does it include text messages or Outbound Calls made to a Consumer after obtaining consent from such Consumer in compliance with Applicable Laws Mobile Distribution does not include emails opened on a mobile device, nor does it include text messages or Outbound Calls made to a Consumer after obtaining consent from such Consumer in compliance with Applicable Laws (except to the extent expressly prohibited under an applicable IO). .
e. Unsolicited Email and Electronic Communications. Vendor and its Network Partners will not send unsolicited email driving or promoting the Traffic or Lead Products; Vendor must either obtain permission to send any emails to the Consumer or, alternatively, the Consumer must have registered his or her email on or through a website in which a prominently posted privacy policy informed the Consumer of the collection and use of his or her email for such purposes, and the Consumer has not withdrawn said permission to send commercial email. Any advertisement(s) to drive or originate the Traffic or Lead Products shall be placed in a manner so that the display, transmission, accessibility, and form thereof (including legally required notices and disclaimers concerning the receipt of unsolicited electronic submissions) complies with Applicable Laws.
f. Consumer Affirmative Consent. Vendor represents and warrants that, for each and every e-mail address used to drive Traffic or obtain Lead Products pursuant to this Agreement, Vendor (or the applicable Network Partner) will have received and recorded from each such Consumer “affirmative consent” (as such term is defined in the CAN-SPAM Act), and which affirmative consent has not been revoked, to receive marketing emails as contemplated by this Agreement. Vendor agrees to provide proof of such affirmative consent (“Email Consent”) to Company within three (3) business days of written request by Company. Such proof shall include, at a minimum, the IP address of the computer or device from which the Consumer provided affirmative consent, that the Consumer provided such affirmative consent, the date and time when the affirmative consent was received, and any applicable URL site where such Consumer provided such affirmative consent. All records of Email Consent shall be retained for at least five (5) years from the date of consent.
g. Privacy Policy. Vendor shall post a link to a privacy policy on any website it maintains that collects personally identifiable information from users, and Vendor shall comply with any such stated privacy policy.
h. Opt-Out Requests. If Vendor is obtaining Traffic or Lead Products via email marketing, all emails sent by Vendor must include a functional unsubscribe option. Each email must contain opt-out instructions. Vendor shall comply with all opt-out requests within ten (10) calendar days from the date of the opt-out request or as required by Applicable Laws, whichever is first.
i. Chat Rooms; Instant Messaging Software. Vendor shall not attempt to generate Traffic or identify Lead Products through chat rooms, instant messaging, bulletin boards, or similar methods.
j. Misleading Advertising. Vendor shall not use creatives or advertising to generate Lead Products or Traffic for products or services that do not exist or that would constitute false or misleading advertising.
k. Specific Rates. Absent the prior written approval of Company, Vendor shall not use creatives or advertising to generate Lead Products or Traffic, or promote an offer to generate Traffic or Lead Products, which include or expressly promote a specific rate or cost (e.g., daily, monthly, yearly cost) for the advertised product.
l. Use of Company Creatives and Marks. Vendor shall not use Company’s creatives, nor use any creatives or advertising or website(s) that display Company’s trademarks, logos, trade names or other similarly-identifying material, without Company’s written consent (email acceptable).
m. Tracking. Vendor will not, and shall ensure that no Network Partner will, use or place any tracking technologies, including without limitation, Flash cookies, pixels, web beacons, and any other tracking mechanisms (collectively, “Tags”) on any Company website without the written permission of Company. In the event that Company agrees to Vendor’s or its Network Partner’s use of any Tags, both Vendor and Network Partner are prohibited from collecting, sharing, selling or repurposing the data collected from such Tags for any reason, including without limitation, for retargeting the consumer. All Tags must terminate upon termination of this Agreement or the applicable IO.
11. Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
12. Confidentiality
a. Each Party acknowledges that all materials, data, and information disclosed by one Party (the "Disclosing Party") to the other Party (the "Recipient") in connection with the performance of this Agreement or any IO, including the terms of this Agreement, consist of confidential and proprietary data (collectively, the "Confidential Information") of the Disclosing Party. For the avoidance of doubt, Confidential Information includes, but is not limited to, information regarding the following: (i) the Disclosing Party’s business strategies, policies or practices; (ii) the Disclosing Party’s inventions, patents and patent applications, discoveries, ideas, concepts, software in various stages of development, designs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, programming code, algorithms, processes, procedures, “know-how,” trade secrets, hardware and system designs, architectures and protocols; (iii) any and all customer information (including without limitation, customer lists, customer names, addresses, etc.), and all other information related to customers and lead buyers; (iv) price lists and pricing policies, financial information (including budgets, forecasts, projections, operating results and financial statements), planned marketing or promotion of the Disclosing Party’s products, services, or offerings; and (v) information received from others that Disclosing Party is obligated to treat as confidential. Vendor will not share any Company Confidential Information with any Network Partner.
b. Each Recipient shall keep the Disclosing Party’s Confidential Information confidential and secure and shall use at least the same standard of care to protect the Disclosing Party’s Confidential Information as the Recipient employs for the protection of its own proprietary information, but in no case less than a commercially reasonable standard of care. The Recipient will not disclose the Disclosing Party’s Confidential Information to any third party except as specifically permitted herein, as required by law or court or regulator order; and will not appropriate the Disclosing Party’s Confidential Information for its own or any other party's use or benefit. The Recipient will restrict its use of the Disclosing Party’s Confidential Information to the purposes anticipated in this Agreement. Confidential Information will be kept strictly confidential by the Receiving Party, except that Confidential Information or any portion thereof may be disclosed to Affiliates, directors, officers, employees, advisors, attorneys, agents, controlling persons, financing sources or other representatives (each, a “Representative”) of the Receiving Party who need to know such Confidential Information for the purpose of this Agreement and who agree to treat such Confidential Information in accordance with the terms of this Agreement. Confidential Information does not include information which (i) is already known by the Recipient, (ii) becomes, through no act or fault of the Recipient, publicly known or available, (iii) is received by Recipient from a third party without a restriction on disclosure or use, or (iv) is independently developed by Recipient without reference to or use of the Disclosing Party’s Confidential Information. The Parties' confidentiality obligations under this Section will continue indefinitely for so long as the Confidential Information is deemed a trade secret under applicable law, and, with regard to the Confidential Information which does not rise to the level of a trade secret, for three (3) years following the termination of this Agreement.
c. Each Party acknowledges that breach of this Section could cause irreparable harm to the other Party for which monetary damages may be difficult to ascertain or an inadequate remedy. Each Party therefore agrees that the Disclosing Party may, in addition to any other available rights and remedies, seek injunctive relief for any threatened of actual violation or breach of this Section.
d. Within ten (10) days after receiving a request by the Disclosing Party for the destruction of Confidential Information, the Receiving Party and its Representatives shall destroy all Confidential Information furnished to the Receiving Party and/or any of its Representatives by or on behalf of the Disclosing Party.
e. In the event that any Party hereto receives a request to disclose all or any part of the Confidential Information of the other Party under the terms of a valid and effective subpoena or order issued by a court or arbitrator of competent jurisdiction or request by a federal or state regulator, the Party receiving such request agrees to (i) promptly notify the other Party of the existence, terms and circumstances surrounding such a request, if lawful to do so, so that the other Party may consider seeking a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, (ii) consult with the other Party on the advisability of taking legally advisable steps to resist or narrow such request, (iii) only disclose such portion of the Confidential Information as such Party is required, in the opinion of counsel, to disclose, and (iv) if disclosure of such information is required, exercise its commercially reasonable efforts, at the expense of the other Party, to obtain an order or other reliable assurance that confidential treatment will be accorded to any Confidential Information that such Party is required to disclose.
13. Privacy and Data Security Requirements
a. Privacy of Consumer Personal Information. Neither Party shall disclose or use any Personal Information in violation of Applicable Laws. Each Party shall comply in all respects with all Applicable Laws concerning such Personal Information.
b. Information Security. Each Party has developed, implemented, and will maintain effective information security policies and procedures that include administrative, technical, and physical safeguards designed to (i) provide for the security and confidentiality of Confidential Information and Personal Information provided hereunder, (ii) protect against anticipated threats or hazards to the security or integrity of such Confidential Information and Personal Information, (iii) protect against unauthorized access or use of such Confidential Information and Personal Information, and (iv) provide for the proper disposal of Confidential Information and Personal Information (the “Information Security Program”). Each Party will implement, at a minimum, standard industry practices in protecting and securing Confidential Information and Personal Information, or any other information that should reasonably be considered sensitive in nature, and shall comply with all Applicable Laws. To the extent that any Party has access to any credit and/or debit card information pursuant to this Agreement, the Party must ensure that it is in compliance with the current version of the Payment Card Industry (PCI) Data Security Standards (DSS). No Personal Information will be collected or stored outside of the United States of America. At least annually, each Party will update its Information Security Program and its administrative, technical and physical safeguards, policies and procedures, to ensure that its policies and procedures remain current with applicable information security standards and applicable laws and address anticipated threats and hazards. Upon request by a Party, the other Party will provide evidence of having completed these annual assessments and updates.
14. Intellectual Property
a. To the extent required by the Parties for the performance of the Services under this Agreement, each Party hereby grants to the other Party a nonexclusive license to use its trademarks, logos, trade names, or other similarly-identifying material (collectively, the “Marks“) solely in connection with the provision of the Services and in a form approved or provided by the applicable Party. Upon termination of this Agreement, each Party shall promptly remove the other Party’s Marks from items and locations under its control. Neither Party shall use the Marks of any third party in violation of any Intellectual Property Rights.
b. Neither Party will acquire any right, title, or interest in any intellectual property rights belonging to the other Party, except as expressly stated herein within this Agreement. All intellectual property created in connection with this Agreement, including without limitation any marketing, solicitation and/or fulfillment materials prepared under this Agreement and any other creative materials used to market and/or fulfill the products promoted hereunder, is the property of the Party who created it, and that Party will own and control all right, interest and title (including copyrights, trademarks, patents, service marks and all other proprietary rights) with respect to such property.
15. Indemnification
a. Mutual Indemnification. Each Party (as the “Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party and its directors, officers, managers, members, shareholders, employees, agents and Affiliates (each, an “Indemnified Party”) from any claim, cause of action, suit, or litigation brought by a third-party (each, a “Claim”) to the extent arising out of, attributable to, or alleging the following: (i) the Indemnifying Party’s breach of this Agreement or an IO, including, without limitation, any representations or warranties made within this Agreement or an IO; (ii) the Indemnifying Party’s violation of Applicable Laws; or (iii) the Indemnifying Party’s infringement of any Intellectual Property right, contract right, or tort right of any third party. Further, Vendor shall indemnify Company against Claims arising out of, attributable to, or alleging any Network Partner’s acts or omissions, including but not limited to the failure of any Network Partner to comply with Applicable Laws. The Indemnifying Party agrees to promptly pay and fully satisfy any and all losses, damages, liabilities, judgments, settlements, costs, and expenses (including, without limitation, reasonable attorneys' fees, court costs, and expert witness costs and fees, if applicable) that are sustained by the Indemnified Party as a result of a Claim.
b. Indemnification Procedures. If a Party becomes aware of a matter it believes is a Claim hereunder or demand for which the Indemnified Party believes is entitled to indemnification, the Indemnified Party shall provide the Indemnifying Party with prompt written notice of any Claim for which defense and indemnification is sought; provided that failure or delay to provide such notice shall not excuse the Indemnifying Party’s indemnification obligations under this Section, except to the extent the Indemnifying Party is materially prejudiced by such failure or delay. Such written notice shall: (i) provide the basis on which indemnification is being asserted, and (ii) be accompanied by copies of all relevant pleadings, demands, and other information related to the matter in the possession of the party seeking indemnification. The Indemnified Party shall: (1) provide reasonable cooperation to the Indemnifying Party and its legal representatives in the investigation of any matter that is the subject of indemnification; and (2) permit the Indemnifying Party sole control over the defense and settlement of any matter subject to indemnification with counsel chosen by the Indemnifying Party (who is reasonably acceptable to the Indemnified Party); provided, however, that (1) the Indemnifying Party shall not enter into any settlement that affects the Indemnified Party’s rights or interests without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed; and (2) the Indemnified Party shall have the right to participate in the defense at its expense. The Indemnifying Party shall pay any and all costs, damages and expenses, including, but not limited to, reasonable attorneys’ fees and costs (even if incident to any related appeals) awarded against or otherwise incurred by any member(s) of the Indemnified Party in connection with or arising from any such indemnified Claim. The Indemnifying Party’s obligations under this Section shall in no manner be affected by the existence or non-existence of insurance.
16. Limitation on Liability
a. IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER TO THE OTHER, IN CONTRACT, TORT, OR OTHERWISE, FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, THE LOSS OF ANTICIPATED PROFITS RESULTING FROM PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF A PARTY WAS INFORMED OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
b. COMPANY’S LIABILITY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE DAMAGES THEORY (WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE), SHALL NOT EXCEED THE GROSS FEES PAID OR PAYABLE TO VENDOR UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
c. THE FOREGOING LIMITATIONS WITHIN THIS SECTION 16 SHALL NOT APPLY TO ANY OF THE FOLLOWING: (i) CLAIMS CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (ii) A PARTY’S BREACH OF SECTION 12 (CONFIDENTIALITY); (iii) A PARTY’S BREACH OF SECTION 14 (INTELLECTUAL PROPERTY); OR (iv) A PARTY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A THIRD-PARTY CLAIM.
17. Audit Rights
Vendor shall maintain books and records relating to the performance of its obligations under this Agreement for a period of at least three (3) years after the creation thereof. During the Term and for a period of one (1) year following its expiration or termination, Company shall have the right to conduct a limited audit on such books and records during regular business hours and upon no less than ten (10) business days’ prior notice for the purpose of confirming the Fees and otherwise determining Company’s payment obligations under this Agreement. In the event an audit discloses an overpayment of Fees, Vendor shall promptly pay Company the amount of any overpayment revealed by any such audit, plus interest calculated at a rate of one percent (1.0%) per month from the date such overpayment was made until the date of repayment to Company. If the audit reveals that Company has overpaid Vendor by five percent (5%) or more of the actual amounts payable for any audited period of time, Vendor shall promptly reimburse Company for all reasonable out-of-pocket costs and expenses incurred in conducting such audit.
18. Disputes; Governing Law and Venue
a. The validity of this Agreement and each of its terms and provisions, as well as the rights and duties of the Parties under this Agreement, shall be construed pursuant to and in accordance with the laws of the State of [Insert State], without giving effect to principles of conflicts of law. Any legal action, court proceeding, or arbitration to construe or enforce this Agreement or otherwise to resolve any dispute between the Parties based on this Agreement, shall be commenced and maintained exclusively in the state or federal courts of [Insert City, State]. Each Party hereby irrevocably submits itself and consents to the exclusive jurisdiction of such courts in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court.
b. In the event of any legal action or proceeding to interpret or enforce the provisions of this Agreement, the substantially prevailing Party shall be entitled to an award of its reasonable costs, expenses, and attorneys’ fees incurred in such action and in any appeal or related action therefrom, in addition to all other remedies.
19. Miscellaneous
a. Amendment and Modification. Except as expressly stated elsewhere in this Agreement or as stated in any IO, the provisions of this Agreement or any IO may not be amended, supplemented, waived or changed unless it is in writing and signed by an authorized representative of each Party. Notwithstanding the above, an IO may be amended or otherwise modified at any time via email between the Parties if: (i) sent to the email address for the other Party’s representative as set forth in the applicable IO; and (ii) the Party to whom the amendment is proposed provides a confirming e-mail in response to the initiating Party indicating its receipt and acceptance of the amended or modified term(s).
b. Waiver. No waiver by either Party or any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
c. Assignment. Neither Party may assign, sublicense, or otherwise transfer (voluntarily, by operation or law or otherwise) this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement upon the sale of all or substantially all of its assets or stock, or in connection with an entity restructure, without the written consent of the other Party.
d. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. In addition, Company is not and shall not be considered for any purposes a “business associate” under the regulations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) set forth at 45 C.F.R. § 160.103.
e. Force Majeure. Neither Party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any act of God, any governmental authority, war, terrorist attack, court order, labor dispute, or any other cause beyond its reasonable control. The provisions of this Section shall not apply to a Party’s payment obligations under Section 3 of this Agreement nor its confidentiality obligations under Section 12 of this Agreement.
f. No Publicity. Neither Party will make any public statement, announcement, or press release regarding this Agreement or the transactions included hereunder without the prior written consent of the other Party, unless required by Applicable Laws.
g. Severability; Interpretation. If any provision of this Agreement or any IO entered into pursuant hereto is found to be contrary to, prohibited by, or deemed invalid by a court of competent jurisdiction, the remainder of the Agreement or IO shall not be invalidated thereby and shall be given full force and effect so far as possible. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
h. Third Parties; Non-Exclusivity. Unless expressly stated herein to the contrary, nothing in this Agreement or any IO, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the Parties and their respective legal representatives, successors and permitted assigns. Additionally, this Agreement is non-exclusive and nothing herein is intended nor shall be construed as creating any exclusive arrangement between the Parties except to the extent expressly set forth within this Agreement or any IO.
i. Notices. Notices under this Agreement are sufficient if sent to such Party by: (a) nationally recognized overnight or two-day courier service; (b) certified or registered mail (return receipt requested); or (c) personal delivery. Notices to Vendor shall be sent to the address listed in the introductory paragraph of this Agreement. Notices to Company shall be sent to the address listed in the introductory paragraph, addressed to the attention of “Legal Department,” with a copy sent via email to [Insert Legal Email Address]. All notices shall be effective upon delivery. A Party may change its notice address by giving notice in accordance with this Section.
j. Entire Agreement. This Agreement and each IO, together with any documents incorporated by reference herein or therein, constitutes the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications and understandings (both written and oral) regarding such subject matter.
k. Acknowledgements. The Parties’ duly authorized representatives for signature acknowledge that they have carefully read and fully understand all of the terms of this Agreement, and that they enter into this Agreement knowingly and voluntarily. Each of the individuals executing this Agreement represents that he or she has the right and authority to enter into this Agreement on behalf of his or her Party and to grant the rights herein granted.
l. Counterparts. This Agreement and any IO may be executed in multiple counterparts, each of which is deemed an original, and a complete set of which, when taken together, shall constitute one and the same document. Confirmation of execution by electronic transmission of a .pdf signature page is binding.

IN WITNESS WHEREOF, and intending to be legally bound, the Parties have reviewed, accepted, and executed the foregoing Master Services Agreement.
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